Other Laws
The Law
As otherwise provided by law.
Commentary
The last exception to the inspection right incorporates limitations on access to public records found in other statutes and sources of legal authority. Thus, a person who requests a particular public record may find that it is protected or regulated by a specific statutory or court- recognized rule.
A. State Law
The New Mexico statutes include numerous provisions relating to the confidentiality of certain public records. These statutes are not necessarily consistent. Statutes protecting a certain kind of record, for example, financial information, in one agency’s files may be silent regarding the same information in another agency’s files. The statutes also do not always completely exempt records from public inspection. While some establish the essential confidentiality of records, others simply provide that certain records may be disclosed only in a limited way. Records covered by statutes that govern the confidentiality of records kept by private persons or businesses are not “public records,” and are not subject to the Act.
Set forth below is a brief description of some constitutional, statutory and regulatory exceptions to the right of a person to inspect any public record of the state. The list is illustrative only and is not intended to be exhaustive. In any given case, the particular requirements of these provisions and others governing the disclosure of specific records should be reviewed to determine how they apply.
NEW MEXICO STATUTES ANNOTATED (1978)
1-4-5.5 Voter information
Certain information from voter databases may be released only with authorization by the county clerk and cannot be used for unlawful purposes. Voter registration lists maintained by the secretary of state and voter registration certificates filed with the county clerks are not covered by this statutory provision and are public records that must be disclosed as provided by law.
2-3-13. Service by legislative council service
The director and employees of the legislative council service shall not reveal the contents or nature of requests or statements for service, except with the consent of the person making such request.
§ 4-44-25. Financial disclosures
Disclosures of financial interests by county officials and employees are available from the county clerk for public inspection, except valuations attributed to the reported interests.
§ 6-14-10. Public securities
Records regarding the ownership or pledge of public securities are not subject to public inspection.
§ 7-1-8. Tax returns
It is generally unlawful for employees of the taxation and revenue department to reveal taxpayer information with specified exceptions.
§ 9-26-14. Educational debts
Information obtained from the labor department by a corporation organized under the Educational Assistance Act concerning obligors of student debts shall be used by the corporation only to enforce the debt and shall not be disclosed for any other purpose.
§ 11-13-1. Indian gaming records
Specified information provided to the state gaming representative under the Indian Gaming Compacts is not subject to public disclosure absent permission from the affected tribe or pueblo. Protected information includes trade secrets, security and surveillance system information, cash handling and accounting information, personnel records and proprietary information.
§ 12-6-5. Audit reports
Reports of agency audits and examinations by the state auditor do not become public until five days after the report is sent to the agency audited or examined.
14-3-15.1. State agency computer databases The use of state agency databases for commercial, political or solicitation purposes is restricted.
§ 14-3-18. Local government databases
Counties and municipalities may charge fees for electronic copies of computer databases and for access to their computer and network systems to search, manipulate or retrieve information from a computer database.
§ 14-6-1. Health information
In general, health information relating and identifying specific individuals as patients is strictly confidential and not a matter of public record.
14-8-9.1 Documents filed with county clerk Documents filed and recorded in a county clerk’s office are public records subject to disclosure, with certain exceptions including health information relating to specific patients and discharge papers of a veteran of the U.S. Armed Forces. Death certificates are available for inspection but may not be copied for 55 years.
15-7-9. Claims against governmental entities Records maintained by the risk management division pertaining to insurance coverage and to claims for damages and other relief against governmental entities, officers and employees are confidential; however, records pertaining to claims are subject to public inspection 180 days after the latest of the four occurrences specified in the statute.
§ 18-9-4. Library patrons
Patron records maintained by public libraries may not be disclosed except to library staff absent the consent of the patron or a court order.
§ 22-21-2. Student lists
Student, faculty and staff lists with personal identifying information obtained from a public school may not be used for marketing goods and services to students, faculty, staff or their families.
§ 24-1-5. Health facility complaints
Complaints about health facilities received by the health services division of the department of health shall not be disclosed publicly in such manner as to identify the individuals or facilities if, upon investigation, the complaint is unsubstantiated.
§ 24-1-20. Medical treatment records
Files and records of the department of health identifying individuals who have received treatment, diagnostic services or preventative care are confidential and not open to inspection except under the specified limited circumstances.
§ 24-14-27. Vital records
It is unlawful for any person to permit inspection of or to disclose information contained in vital records (birth and death certificates) maintained by the vital statistics bureau, or to copy or issue a copy of all or part of any record, except as authorized by law.
§ 27-2B-17 Public assistance
The use or disclosure of the names of participants in public assistance programs administered by the human services department for commercial or political purposes is prohibited.
28-17-13. Long-term care client records
Files and records pertaining to clients, patients and residents held by the state long-term care ombudsman are confidential and not subject to the provisions of the Inspection of Public Records Act.
§ 29-10-4. Arrest record information
Notations of the arrest or filing of criminal charges against an individual by a law enforcement agency that reveal confidential sources, methods, information or individuals accused but not charged with a crime is confidential and dissemination is unlawful except as otherwise provided by law.
§ 29-11A-5.1. Information regarding certain registered sex offenders
Registration information (except social security numbers) regarding certain sex offenders requested from specified law enforcement agencies must be provided no later than seven days after the request is received.
§ 29-12A-4. Crime Stoppers records
Records and reports of a local crime stoppers program are confidential.
§ 31-21-6. Probation and parole information
All social records concerning prisoners and persons on probation or parole obtained by the parole board are privileged and shall not be disclosed to anyone other than the board, the director of the field services division of the corrections department, sentencing guidelines commission or sentencing judge.
§ 32A-2-32. Juvenile records
Social, medical and psychological records obtained by juvenile probation and parole officers, the juvenile parole board or in the possession of the children, youth and families department are privileged and may be inspected only by authorized persons.
§ 32A-3B-22. Family in need of services
All records concerning a family in need of services in possession of the court or produced or obtained by the children, youth and families department during an investigation in anticipation of or incident to a family in need of court-ordered services proceeding shall be confidential, closed to the public and open to inspection only by authorized persons.
§ 32A-5-8. Adoption records
Files and records regarding adoption proceedings are not open to public inspection.
§ 41-5-20. Medical malpractice information
The deliberations of a medical review commission panel regarding alleged malpractice shall be and remain confidential, and the deliberations and panel’s report are privileged from discovery.
§ 41-8-4. Arson reports
Information received by specified state and federal agencies regarding a fire loss investigation shall remain confidential except as provided in the Arson Reporting Immunity Act.
§ 43-2-11. Substance abuse treatment
The record of any alcoholic or drug-impaired person who voluntarily submits himself for treatment at an approved public treatment facility shall be confidential.
§ 45-2-515. Wills
A will deposited by the testator or his agent with the clerk of any district court shall be kept confidential.
50-9-21. Workplace safety inspections Information obtained by the Department of Labor in the course of an on-site consultation requested by an employer and any trade secret information obtained in connection with the enforcement of the Occupational Health and Safety Act generally is confidential.
57-10-9. Distress merchandise sale licenses
The filing of an application for a distress merchandise sale with a county or municipality, the contents of the application, and issuance of the license are confidential information until after the applicant gives public notice of the proposed sale.
§ 57-12-12. Unfair trade practices
A demand by the Attorney General for the production of tangible documents or recordings that is believed to be relevant to an investigation of a probable violation of the Unfair Practices Act is not a matter of public record.
§ 58-1-48. Financial institutions
Records of the financial institutions division of the regulation and licensing department are not subject to subpoena and are not public records.
§ 58-13C-607. Securities
Information obtained by the director of the securities division of the regulation and licensing department is public except information obtained in connection with an investigation of alleged violations and certain privileged financial and trade secret information.
§ 59A-4-11. Insurance examinations
Pending, during and after the examination of an insurance company by the superintendent of insurance, financial statements, reports or findings affecting the status of the company shall not be made public until after the superintendent adopts the examination report.
§ 61-5A-25. Complaints against dental health care licensees
Complaints to the board of dental health care relating to disciplinary action against a dentist or other licensed dental health care provider are confidential until the board acts on the complaint and issues a notice of contemplated action or reaches a settlement.
§ 61-14-17. Animal inoculations
Animal inoculation records maintained by any state or local public agency are not public records but, upon request, an agency may confirm or deny that a particular animal has received inoculations in the preceding 12 months.
§ 61-18A-9. Collection agency licenses
The financial statement included with the application for a collection agency license shall be confidential and not public record.
66-2-7.1. Drivers’ personal information
Disclosure of personal information about drivers obtained by the Motor Vehicle Division is unlawful, with limited exceptions.
§ 66-5-6. Driver’s license qualifications
Reports received or made by the health standards advisory board on whether a person is physically, visually or mentally qualified for a driver’s license are confidential and may not be divulged to any person or used as evidence in any trial.
§ 66-7-213. Accident reports
With specified exceptions, accident reports made to the state highway and transportation department by persons involved in accidents or by garages are for the confidential use of the department and other specified agencies.
§ 69-11-2. Mining reports
Information regarding production and value of production for individual mines furnished yearly to the mining and minerals division of the energy, minerals and natural resources department shall be held confidential except that it may be revealed to specified agencies.
§ 69-25A-10. Coal mining permits
The portion of an application for a surface coal mining and reclamation permit pursuant to the Surface Mining Act with information pertaining to analysis of chemical and physical properties of coal (except that regarding mineral or elemental contents which is potentially toxic in the environment) shall be kept confidential and not be a matter of public record.
74-2-11. Air contaminant information
Confidential business information and trade secrets obtained under the Air Quality Control Act by the environmental improvement board, the environment department or a local air quality control board shall remain confidential.
§ 76-4-33. Pesticide licenses and permits
Records kept by licensees under the Pesticide Control Act to which the New Mexico department of agriculture has access shall be confidential.
NEW MEXICO CONSTITUTION
Art. II, § 24. Victim’s rights
Giving a victim of specified crimes certain rights, including the right to be treated with fairness and respect for the victim’s dignity and privacy throughout the criminal justice process.
Art. VI, § 32. Judicial disciplinary records
All papers filed with the judicial standards commission or masters appointed to conduct hearings are confidential.
SUPREME COURT RULES OF EVIDENCE
Rule 11-503. Lawyer-client privilege
A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications between himself and his lawyer, and between other specified persons, made to facilitate the rendition of professional legal services to the client.
Rule 11-508. Trade secrets
A person may refuse to disclose and may prevent others from disclosing a trade secret owned by him.
Rule 11-509. Communications regarding juveniles
A child alleged to be a delinquent or in need of supervision and a parent, guardian or custodian who allegedly neglected his child may prevent the disclosure of privileged confidential communications between himself and a probation officer or a social services worker employed by the children, youth and families department made during the course of a preliminary inquiry.
Rule 11-510. Informer identity
With certain exceptions, the state or a subdivision of the state may refuse to disclose the identity of a person furnishing information relating to or assisting in an investigation of a possible violation of law to a law enforcement officer.
SUPREME COURT RULES GOVERNING DISCIPLINE OF LAWYERS
Rule 17-304. Disciplinary proceedings
Investigations and investigatory hearings conducted by disciplinary counsel generally are confidential unless and until the filing of a formal specification of charges with the disciplinary board or other occurrences specified in the rule.
Commentary
Sometimes, a public body will attempt to grant confidentiality to certain records by regulation or ordinance. In most cases, a regulation or ordinance, by itself, may not be used to deny access to public records because it is not a “law” for purposes of the “otherwise provided by law” exception. However, according to the New Mexico Supreme Court, a regulation making certain records private may be proper if the regulation is authorized by a statute and is necessary to carry out the statute’s purposes. See City of Las Cruces v. Public Employee Labor Relations Bd., 121 N.M. 688, 917 P.2d 451 (1996).
Example 24:
A statute authorizes the Department of Health to establish standards for the delivery of behavioral health services, including “the documentation and confidentiality of client records.” Pursuant to this statute, the Department promulgates a regulation that keeps the identity of clients served by public and private mental health clinics confidential. Public health clinics may properly rely on the regulation to deny requests to inspect records containing information that identifies clients.
Example 25:
A state agency that oversees collective bargaining by public employees issues a regulation providing that the names of employees on collective bargaining representative petitions shall be kept confidential. A public employer requests access to a petition signed by a number of its employees that indicates the employees’ interest in having a representative election. When the state agency denies access to the petition, the public employer files a lawsuit challenging the agency’s authority to keep the employees’ names confidential because no statute expressly protects the names from public disclosure. The court upholds the agency’s decision to deny access to the records based on its regulation. The court correctly rules that the “otherwise provided by law” exception incorporates the regulation because the regulation is authorized by a statute governing collective bargaining by public employees and effectuates the statute’s provisions that expressly protect the right of public employees to collectively bargain, to join unions without interference and to conduct representative elections in secret.
B. Federal Law
Some state or local public agencies may be subject to federal laws and regulations governing the disclosure of public records. For example, the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, provides that federal funds will not be available to any educational agency or institution that permits the release of education records or personally identifiable information (other than directory information) without consent to any individual or agency other than those listed. “Directory information” is defined to include a student’s name, address, telephone number, date and place of birth, field of study, athletic participation, dates of attendance and degrees received. This federal statute supplements the protection specifically provided under Section 14- 2-1(A)(3) of the Inspection of Public Records Act for matters of opinion in students’ files. (It should be noted that FERPA excludes from its protection law enforcement records maintained by a law enforcement unit of an educational institution.)
Example 26:
A person claiming to have been a recent honors graduate of a state university applies for a job with START, Inc., a local public relations firm. START, however, is somewhat suspicious of the applicant’s claims and writes the university for his scholastic record. The university, being subject to the Family Educational Rights and Privacy Act, can tell START whether the applicant got a degree but cannot send a transcript of his grades without his permission.
Commentary
Another example of federal protection from disclosure is that applicable to social security numbers. In 1990, Congress enacted legislation providing confidentiality for social security account numbers and related records obtained or maintained by a state or local government agency pursuant to laws enacted on or after October 1, 1990. See 42 U.S.C. § 405(c)(2)(C)(viii). There is no federal protection for social security numbers obtained under laws enacted before October 1, 1990, but Congress has recognized in other contexts that the disclosure of social security numbers implicates personal privacy considerations. (Social security numbers are now expressly protected under the Inspection of Public Records Act as “protected personal identifier information.” See discussion in Chapter III, Section B.8 of this Guide.)